Shots Fired! UDRP Panel Puts Domainers, Parked Pages On Notice?

[freedom30]

hey, what's with all the filings and awards to complainants?...

http://www.domainnamelife.com/2012/...-panel-puts-domainers-parked-pages-on-notice/

 

[Ms Domainer]

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This is troublesome.

A lot of overreaching by a bunch of corporate bullies.



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[johname]

I tried skimming the paragraphs, perhaps someone that found the parkpage nugget in here post it.

 

[Kate]

UDRP has become a cheap lottery ticket. No wonder some thieves are trying their luck.

 

[freedom30]

UDRP has become a cheap lottery ticket. No wonder some thieves are trying their luck.

...absolutely risk free attempts and it looks like it's just getting started with the panel being so receptive to corporate concerns...

 

[Dave_Z]

Frankly, that decision isn't new. But I understand how some domainers might get "scared" with these things.

Look up the decision online. You might then see there's more to it than what MHB wrote there, and it's not necessarily something to be afraid of.

There are actually a few discussions surrounding that in the legal section as well. Good luck sorting through them, though, heh.

 

[ecalc]

...absolutely risk free attempts …

Filing a UDRP complaint is not risk free. There are fixed costs¹, in the eLeader case a 500 euro initial UDRP fee (1 domain, 1 panelist & CAC admin). The complainant risks an additional UDRP fee of 800 euros per provider rules or if the panel determines that it is appropriate due the complexity of the proceeding. Complainant legal counsel, if any, is of course extra. The complainant also risks the fallout of a panel decision in favor of the respondent. The respondent may raise the domain asking price by a staggering amount when that happens.

¹ http://www.adr.eu/arbitration_platform/fees.php

 

[freedom30]

Filing a UDRP complaint is not risk free. There are fixed costs¹, in the eLeader case a 500 euro initial UDRP fee (1 domain, 1 panelist & CAC admin). The complainant risks an additional UDRP fee of 800 euros per provider rules or if the panel determines that it is appropriate due the complexity of the proceeding. Complainant legal counsel, if any, is of course extra. The complainant also risks the fallout of a panel decision in favor of the respondent. The respondent may raise the domain asking price by a staggering amount when that happens.

¹ http://www.adr.eu/arbitration_platform/fees.php

...then perhaps "absolute" is a poor choice of words, so let's talk in "relative" terms.

€3100 is a big chunk of change for me, but for a corporation a small price to pay for the opportunity to snag a domain name that they do not own. I figure that more, not fewer, corporate entities are going to enjoy spinning the wheel of fortune for the opportunity to gain ownership of a name, especially when they do not wish to pay a premium for the name, regardless of it being within their budget.

let's look at it this way, then, as sdsinc seemed to have grasped and explained so eloquently...

"UDRP has become a cheap lottery ticket. No wonder some thieves are trying their luck."

 

[johname]

It's an excellent point that it's not risk free under certain circumstances, think about how much the price went up on DealBook.com when the New York Times had to crawl to Frank after losing the UDRP.

But back to my first point. Is there anything new in this story? It's too bloggy for my eyes. I think I mistook "Parked Pages" for there being something specific to parking and losing a UDRP, but I am now feeling it was just a catchy title.

 

[Name Trader]

Reading between the lines could well be illuminating. He's bemoaning that domains registered before a company even existed, are being awarded the domains based on the trademark infringement on their parking pages. Well it may well be that the domain was registered before a company even existed, but if there was a change of ownership after the company existed, that would probably be a bad faith registration when viewed along with the actual usage of the parked domain. It could also be the respondent didn't respond. There are many reasons why a panel may award the domain to the complainant. Each case should be read based on the individual circumstances of the case. Did the respondent respond clearly and concisely? Or at all? Was there a history of similar cases already which had gone against the respondent?

Whilst the UDRP might be flawed (or even broken), it's what we are currently governed by. But there have also been cases which the panel have upheld that domaining and parked pages is legitimate business. Frank Schilling comes to mind, although I don't remember the actual cases. So it can cut both ways.

But. I would say that if you want to successfully defend a URDP complaint you should definitely retain the services of a lawyer. They are worth their weight in gold in slanting the arguments in your favor. You can find a list on top of the Legal section here... http://www.namepros.com/legal-issue...commended-lawyers-for-domain-name-issues.html

 

[ecalc]

... I figure that more, not fewer, corporate entities are going to enjoy spinning the wheel of fortune for the opportunity to gain ownership of a name…

If it makes you feel better, 2007-2011 WIPO¹ UDRP case volume grew 28%, while domain name registrations² grew 47%. In 2007, one out of every 70,965 registered domains got hit by WIPO UDRP. Four years later, one out of 81,404. That's a 'relative' lag and it calls for a cold one.

Year 2007 - WIPO UDRP Cases = 2156, TLDs = 153M
Year 2008 - WIPO UDRP Cases = 2329, TLDs = 177M
Year 2009 - WIPO UDRP Cases = 2107, TLDs = 192M
Year 2010 - WIPO UDRP Cases = 2696, TLDs = 205M
Year 2011 - WIPO UDRP Cases = 2764, TLDs = 225M

WIPO is one of 4 ICANN approved UDRP service providers. NAF³ shows 1805 cases in 2007, 1770 in 2008 and 1759 in 2009. Yawn. ADNDRC & CAC stats aren't handy.

¹ http://www.wipo.int/amc/en/domains/statistics/cases.jsp
² http://www.verisigninc.com/en_US/why-verisign/research-trends/domain-name-industry-brief/index.xhtml
³ http://domains.adrforum.com/rcontrol/resources/DomainNameDisputeResolution-FactSheet..pdf

 

[bmugford]

But there have also been cases which the panel have upheld that domaining and parked pages is legitimate business. Frank Schilling comes to mind, although I don't remember the actual cases. So it can cut both ways.

This is from a dispute against Frank Schilling that was denied.

"Respondent has been using the disputed domain name in connection with a bona fide offering of services since it acquired the <homeawayfromhome.com> domain name in a domain name auction in 2005. Respondent holds a large number of domain name registrations for the purpose of generating advertising and pay-per-click revenue. The Panel finds that this is bona fide offering of services under Policy ¶ 4(c)(i)."

UDRP was designed for obvious violations of TM law. It was also designed at a time where domains did not have the value they do today.

As time goes on major companies will continue to use the system as a cheap lottery ticket.

There is no penalty even for a RDNH finding. At some point someone needs to take a RDNH finding to court and sue for actual and punitive damages. There needs to be penalties for frivolous lawsuits.

Also, unlike most courts, precedent does not matter. You have rulings stating different things days apart.

EA just lost a dispute a few days ago for SSX.com –

”The panel concluded that the buying and selling of generic domain names constituted “a bona fide offering of goods”

The whole system needs to be reformed. It was not designed as a tool to steal assets. Many of these disputes belong in an actual court, not a kangaroo court.

Brad

 

[Name Trader]

Thank Brad for clearing that up.

 

[alien51]

I still can't get over the case where a complainant who lost a UDRP decision, merely RE-FILED the same identical case a few months later... and WON, simply because he got a judge who had a different opinion the second time around.

Crazy world of domains.

 

[carob]

I still can't get over the case where a complainant who lost a UDRP decision, merely RE-FILED the same identical case a few months later... and WON, simply because he got a judge who had a different opinion the second time around.

Crazy world of domains.

Did you mean panelist? The panelists seem to be IP lawyers in many cases... so their professional contacts and allegiances are with big companies, not domain owners. And there is no appeal process afaik - amazing.

Can you just keep filing for the same domain? Easy way to harass someone, and they have to reply rapidly so if they were on holiday they might come back and find their domain gone.

 

[alien51]

Did you mean panelist?

Yes. Only 1 judge. Which i think was a strategy of the complainant to pick only 1. So they'll have more to choose from next time, if they keep losing the case. By the way, i'm refering to a case taken from the thread here about the WIPO Wall Of Shame.

Unbelievable. Never was my respect and faith on these "IP lawyers" so shattered.

Can you just keep filing for the same domain?

Obviously, you can. Unbelievable.

so if they were on holiday they might come back and find their domain gone.

Which means, you need to put a valid phone number on your whois data.

 

[Dave_Z]

I still can't get over the case where a complainant who lost a UDRP decision, merely RE-FILED the same identical case a few months later... and WON, simply because he got a judge who had a different opinion the second time around.

Can you just keep filing for the same domain? Easy way to harass someone, and they have to reply rapidly so if they were on holiday they might come back and find their domain gone.

http://www.wipo.int/amc/en/domains/search/overview2.0/index.html#44
http://www.udrpcommentaries.com/denying-renewal-and-reopening-of-a-closed-case/

While anything can be used and/or abused, being able to refile a previously dismissed complaint against someone who materially wronged you in some way can help. It can go both ways, though it depends on the circumstances.